Haryana

StateCommission

A/335/2015

UNITED INDIA INSURANCE CO. - Complainant(s)

Versus

ANIRUDH SINGH - Opp.Party(s)

P.S.SAINI

14 Sep 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :       335 of 2015

Date of Institution:       13.04.2015

Date of Decision :        14.09.2015

 

United India Insurance Company Limited, Regional Office, SCO 123-124, Sector 17-B, Chandigarh, through its duly constituted attorney Smt. Sunita Sharma, Deputy Manager.

                                      Appellant-Opposite Party

Versus

 

Anirudh Singh s/o Sh. Ganga Sahai, Resident of Village Bhaiyapur, Rohtak now at House No.1, Sector-4, Rohtak.

                                      Respondent-Complainant

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member                                                                                                                                         

Present:               Shri P.S. Saini, Advocate for appellant.

                             Shri N.K. Malhotra, Advocate for respondent.

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

United India Insurance Company Limited (for short ‘the Insurance Company’)-Opposite Party, is in appeal against the order dated March 11^th, 2015, passed by District Consumer Disputes Redressal Forum (for short ‘District Forum’), Rohtak, whereby complaint No.465 of 2012, filed by Anirudh Singh-Complainant, was accepted directing the Insurance Company as under:-

“….it is observed that opposite party shall pay the amount of Rs.165450/- (Rupees one lac sixty five thousand four hundred fifty only) along with interest @ 9% p.a. from the date of filing the present complaint i.e. 27.08.2012 till its actual realization and shall also pay a sum of Rs.2200/- (Rupees two thousand two hundred only) as litigation expenses to the complainant maximum within one month from the date of completion of formalities by the complainant e.g. transfer of R.C. & Subrogation letter etc to the opposite party failing which the awarded amount shall fetch interest @12% p.a. from the date of decision.”

2.      Car bearing registration No.HR-12H-6704 of appellant-complainant was insured with the Insurance Company for the period from June 26^th, 2011 to June 25^th, 2012 for Rs.1,65,450/- vide Insurance Policy Exhibit P-1. During the intervening night of 26/27^th June, 2011 the car was stolen while it was parked in front of the house of complainant’s cousin. On being informed, the Police of Police Station, Civil Lines, Karnal, registered F.I.R. No.487 (Exhibit P-9) dated June 28^th, 2011. Intimation to the Insurance Company was given. Untraced Report was submitted by the Police and the case was closed vide order Exhibit P-10 and Exhibit P-11 passed by Chief Judicial Magistrate, Karnal. Claim being submitted, the Insurance Company repudiated the same vide letter dated March 6^th, 2012 (Exhibit P-12) stating therein as under:-

“1.     That your son parked your car in front of the house of his cousin brother at Karnal in the night un-attended without any supervision and also left key in the said Car. This all is disclosed by our Investigator Report. Thus you have parked the Car un-attended and without supervision and also left key in it. Therefore, you have violated the terms and condition of the policy specially condition No.4 of the policy.

2.      That the Car was stolen on 26/27-6-11 and FIR was lodged on 28/6/11 and intimation in the company on 7/7/11. Thus there is a delay in lodging the FIR and intimation to the company. Thus there is a violation of terms and conditions of the policy of condition No.1 of the policy. Thus you have violated the terms and conditions of the policy, therefore, we absolve our self from any further liabilities arising out of this claim and your claim stand closed as “No Claim”.”

3.      Aggrieved of his claim, the complainant filed complaint under Section 12 of the Consumer Protection Act, 1986.

4.      The Insurance Company-opposite party, contested complaint by filing written reply while reiterating the fact stated in the repudiation letter.

5.      Learned counsel for the appellant-Insurance Company has argued that the ignition key of the car was left in the ignition switch during the night hours and therefore the Insurance Company was not liable to pay any claim to the complainant as the complainant left the car un-attended, unlocked without taking care of the same.

6.      The contention raised is not tenable. A perusal of the FIR (Exhibit P-9) shows that it was got recorded on the statement of Veer Vikram Singh s/o Sh. Anirudh Singh-complainant, who was in actual use of the car at the time of theft. He specifically got recorded that he parked the car after locking it at about 11.00 P.M. and on the next morning at about 5.00 A.M., the car was found missing. To deny the right of the complainant, the Insurance Company produced photo copy of the statement (Exhibit R-2) purporting the same to have been made by Anirudh Singh-complainant. It has been contended that in the said statement Anirudh Singh stated that one key of car was in the car itself while two keys were returned to the Insurance Company. It is not disputed that manufacturer of vehicle supplies only two ignition keys of the vehicle, therefore, there was no question of third key being there. Admittedly, two keys have been returned to the Insurance Company. Veer Vikram Singh-son of the complainant, who parked the vehicle specifically stated that the car was locked. Photo copy of the statement purporting to have been made by Anirudh Singh and got recorded by a person alleging himself to be investigator without disclosing his name and indisputably the statement recorded is not in the hand of Anirudh Singh, cannot be preferred to be the statement recorded by the Police, who is authorized to record statement. The name of the person, who recorded the statement, has not been disclosed. The Insurance Company has not mentioned the name of the person who was appointed as Investigator and recorded the statements. There is no evidence on the record to show that three ignition keys were given by the dealer/manufacturer to the complainant at the time of purchasing the vehicle.  In normal course only two keys are supplied.

7.      So far as the delay of one day in lodging of the F.I.R., the same is not significant in view of the report (Exhibit R-3) of the investigator.  It has been clearly mentioned in Exhibit R-3 that when Veer Vikram Singh came out, he found the car missing. Veer Vikram Singh went ot nearest Police Post Sector-6 and VT message was flashed at that time. Thus, it is abundantly clear that immediately information was given to the Police regarding theft of the car. The delay of one day in lodging the FIR by the Police is not the fault of the complainant. It was for the Police authorities to record the FIR immediately.

8.      In Revision Petition No.590 of 2014, New India Assurance Company Ltd. and another vs. Shri Girish Gupta, decided on July 31^st, 2014, Hon’ble National Commission held as under:-

“21.   This condition in our considered view requires insured to take reasonable steps for protection of the insured vehicle from any loss or damage. The leaving of the key in the ignition of the car on all occasions cannot be termed as so serious breach so as to disentitle the insured from seeking claim under the insurance policy. Whether or not there is breach of condition will always depend upon the facts of the case. The car is said to have been stolen when the driver parked the vehicle at road side and went to ease himself, forgetting to remove the keys from ignition. This lapse on the part of the driver cannot be treated as wilful breach of condition no.5 on the part of the driver. If in the hurry to answer the call of nature the driver forgot to remove keys from the ignition switch he cannot be said to have committed wilful breach violation of the terms of the above condition no.5. In our aforesaid view we are supported by judgment of Punjab & Haryana High Court in the matter of Bajaj Allianz General Insurance Company Ltd. Vs. M/s Sagar Tour & Travels & Anr. P.L.R. Vol. CLX IV – (2011-4)

22.    Similar question came up before the coordinate Bench of this Commission in the matter of National Insurance Co. Ltd. Vs. Kamal Singhal IV (2010) CPJ 297 (NC) wherein National Commission while dealing with the issue of breach of condition for not taking reasonable car of not safeguarding the insured vehicle observed thus:

“True it is that, had there been such evidence, the discrepant statement made by passengers of the insured as quantum of hire and reward was not a significant issue. Repudiation of claim made by Insurance Company was also found to be invalid for the reason that since driver was not expected to carry key of the vehicle with him while getting down from the vehicle to answer nature’s call, particularly, when the vehicle was within his sight”.

23.    In the case of Bajaj Alianz General insurance Company Ltd., vs M/s Sagar Tour and Travels and Another, the High Court of Punjab and Haryana decided on 11.08.2011 has held that “this clause, I would understand, would mean that the insured shall take reasonable steps for protection. Retention of a key in the car ought not to be at all times taken as constituting so serious breach as to disentitle the insured to make the claim under the policy. It all depends on facts of the case. The car was said to have been lost at the time when the driver had taken the vehicle and parked the vehicle in front of the house of his relative but did not remove keys. The particular Clause 5 extracted above shall be read in the context of a person deliberately doing an act that resulted in theft. If no willful act could be attributed to the insured then, in my view, this clause cannot operate to exclude the liability of the insurance company. A human fallibility to forget is not the same as committing violation of terms of the policy. The permanent Lok Adalat had taken care to case some portion of liability on the insured and has denied to him the 25% of the sum insured under the policy. Thankfully for the insurance company, claimant himself has not come by means of any writ petition seeking for the entire amount”.

The authorities cited supra are fully applicable to the instant case.

9.      In view of the above, the Insurance Company was not justified in repudiating complainant’s claim. Thus, no ground to interfere in the impugned order is made out.

10.    The appeal fails and is hereby dismissed.

11.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the respondent-complainant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced 14.09.2015

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL